United States District Court, D. New Jersey
BETANIA TORIBIO, Administratix of the Estate of JOHN JOAQUIN TORIBIO, Deceased; and BETANIA TORIBIO, Individually Plaintiffs,
PINE HAVEN, LLC, d/b/a PINE HAVEN CAMPGROUND and PINE HAVEN CAMPING RESORT; and DIVERSIFIED INVESTMENTS, INC. a/k/a DIVERSIFIED INVESTMENTS, LLC a/k/a DIVERSIFIED INVESTMENT SERVICES LLC, Defendants/Third Party Plaintiffs,
HEATHER MILLER a/k/a HEATHER DIOSCON; TIMOTHY MILLER; ANTHONY DIOSCON; and MICHELLE WHEELER, Third Party Defendants.
LAW OFFICE OF TERKOWITZ & HERMESMANN Patrick J. Hermesmann, Esq., Mount Laurel, New Jersey. Counsel for Defendants/Third Party Plaintiffs Pine Haven. LLC & Diversified Investments, Inc.
HOAGLAND, LONGO, MORAN, DUNST & DUKAS, LLP John C. Simons, Esq., New Brunswick, New Jersey. Counsel for Third Party Defendant Michelle Wheeler.
JOSEPH E. IRENAS, Senior District Judge.
Plaintiff Betania Toribio ("Betania") brings this wrongful death suit on behalf of her son, decedent John Toribio ("John"), and in her individual capacity. Following the filing of Betania's Complaint, Defendants Pine Haven, LLC, and Pine Haven Holdings, LLC,  filed an Answer and Third Party Complaint, alleging that Third Party Defendant Michelle Wheeler ("Wheeler"), among other Third Party Defendants, shared liability in John Toribio's death, and the Defendants were therefore entitled to indemnification from Wheeler.
Currently pending before the Court is Wheeler's Motion for Summary Judgment, which seeks judgment in her favor on the counts of negligence and indemnification asserted against her. Her motion is unopposed. For the reasons explained herein, her motion will be granted.
The Court recounts only the facts necessary for deciding Michelle Wheeler's pending motion.
The events giving rise to this suit occurred at Pine Haven Campground in Ocean View, New Jersey. (T.P.D.S.O.M.F. ¶ 1) The campground is owned and operated by the Defendants/Third Party Plaintiffs, Pine Haven, LLC and Pine Haven Holdings, LLC. (Third Party Compl. ¶ 1)
On August 8, 2010, fourteen year-old Michelle Wheeler traveled to the Pine Haven Campground with her family and an unnamed minor friend to visit for the afternoon and evening with Wheeler's cousins, the Sharps. (Michelle Wheeler Dep., Nov. 25, 2013, at 15:15-16:15; Wheeler Answers to Interrog. at ¶ 2) Shortly after arriving around 4:00 p.m., Wheeler went swimming in the lake at Pine Haven Campground for approximately twenty minutes with her mother, brother, friend, and two cousins. (Wheeler Answers to Interrog. at ¶ 2) After swimming, Wheeler, her friend, and one of her cousins walked over to the basketball courts at Pine Haven Campground. (Wheeler Dep. at 18:7-19:19)
Upon arriving at the basketball court, Wheeler met the decedent, fourteen year-old John Toribio, and Third Party Defendant Anthony Dioscon ("Dioscon"), a friend and classmate of John Toribio. (Wheeler Answers to Interrog. at ¶ 2) This was the first time that Wheeler met either John or Dioscon, and the group spent between twenty and thirty minutes talking on the basketball court. (Id.; Anthony Dioscon Dep., Oct. 15, 2013, at 75:15-77:5; Wheeler Dep. at 20:23-21:25) After spending time talking at the basketball court, Wheeler, her friend, John, and Dioscon began heading back towards the lake while Wheeler's cousin remained behind at the basketball court. (Wheeler Dep. at 21:4-25; Dioscon Dep. at 75:20-77:1)
Once they arrived at the lake, Wheeler, her unnamed minor friend, John, and Dioscon initially stood on the edge of the lake talking. (Wheeler Dep. at 23:3-7) According to her deposition testimony, Wheeler suggested that they swim in the lake, and upon her suggestion, three of the teenagers - Wheeler, Dioscon, and John - elected to go swimming. (Id. at 23:9-13, 24:14-22; Dioscon Dep. at 76:21-77:1)
After entering the water to swim, but still near the shore, the three teens began splashing water near one another. (Dioscon Dep. at 107:1-14) Following a few moments of splashing, the three began to swim out towards the middle of the lake, with Dioscon and Wheeler talking together and swimming in front of John. (Wheeler Dep. at 30:2-5) Dioscon and Miller swam together, all the while ahead of John, for approximately two minutes before they reached almost the exact middle of the lake. (Id.; Dioscon Dep. at 110:13-111:2)
Just as Wheeler and Dioscon reached the middle of the lake, Wheeler turned 180 degrees to see John flailing his arms a few feet behind her, and then heard John call out "help." (Wheeler Dep. at 30:4-20; Dioscon Dep. at 106:10-21) As they both observed John behind them "splashing around" and "flailing his arms up and down, " Wheeler asked Dioscon if John was alright. (Dioscon Dep. at 106:10-15; Wheeler Dep. at 30:4-10) Dioscon told Wheeler "Yeah, I think so, " and, as he watched John, Dioscon believed that John "was in control of everything[, h]e looked like he was just out there messing around." (Dioscon Dep. at 106:16-21) Wheeler accepted Dioscon's response, believing that John was kidding around when he called out for help. (Wheeler Dep. at 31:2-4) Wheeler and Dioscon then turned back away from John, swimming to the opposite side of the lake for approximately two more minutes without turning around until they reached the opposite shore. (Id. at 32:12-33:15)
Upon arriving at the shore, Wheeler and Dioscon turned and looked back across the lake but failed to see John in the water. (Id. at 33:17-20; Dioscon Dep. at 113:11-114:1) Wheeler asked Dioscon where John had gone, and Dioscon responded that he thought John might have left the lake on his own. (Wheeler Dep. at 33:17-20; Dioscon Dep. at 113:13-22) Wheeler and Dioscon began walking the perimeter of the lake to see if they could find John's belongings, believing that John would have picked them up if he had gotten ...